How is an Electronic Contract is Enforced?

Advancement of technology, globalization, speed, convenience and efficiency are the prime attribute to promoting the electronic contract. All the general rules such as offer acceptance and other qualification of contract are mentioned in the Indian Contract Act 1872 are applicable, adding to that certain provisions of IT Act 2000 authenticate its importance.

Browse Wrap term is used to denote access to the use of materials which are available on websites for use and download, which is hyper-linked, and users must agree in exchange for using the website. Such types of agreements are intended to be binding on the contracting parties by the mere browsing of the website.

Such a type of contract does not require the manifestation of assent by clicking “I Agree” or “I Accept” tab, but a web-site user purportedly gives his or her assent by simply downloading or using the product or by entering the website.

An important feature of browse wrap agreement is that the party/ user can see the applicable terms and conditions before downloading/ using the product, which exhibits more transparency compare to other electronic contract, and it deem to be constructive notice by the court.

But it is the strange situation to answer the question like: How does one demonstrate that a user assented to the Terms of Use agreement?

Though there is no way to express sign of consent, and any acceptance of the agreement, if it comes, must be subject on the simple act of browsing the site. It is deem the browse wrap agreement is the implied contract, as there are no clear sign of acceptance, but the other party puts a notice on the website to terms of use, it certainly raises a question: Does it mean it is an implied contract or a standard form of contract?

The answer may touch both the aspects, it is sort of an implied contract, as no clear manifestation of acceptance is given, but the mere use of website implies consent to the terms and conditions of website.

And as for the second aspect, it seems to be standard form of contract, as there is no room for bargain or redlining the contract as the general rule of contract meeting of mind, but the dominance of party subsist. It does not mean that it is the absolute principle, because there are many protective devices available, and merely using the website does not constitute acceptance of the terms of use unless there was evidence that the user knew, or should have known, it means the use is the conditional aspect.

It is also important to perceive the standard contract doctrine which enunciates that when an advantage is offered subject to declared conditions, and the user decides to obtain the benefit with knowledge of the conditions of the offer, the act of taking the benefit constitutes an acceptance of the terms, which therefore become binding on the user.

The same situation In Register.com, Inc. v. Verio, Inc., 356 F.3d 393; 2004 U.S. App. LEXIS 1074; 69 U.S.P. Q.2D (BNA) 1545 a New York court dealt wherein a violation of browse-wrap agreement. It was contended by the defendant that the terms (Terms of Use) did not form a binding contract because there was no” I accept” button to click. But the court held that “act of using the website is deemed to be acceptance”

Conditions for Binding in Browse Wrap Contract

Visibility on Website: There must be a reasonable anticipation that the user of the site would see it, either it is being exhibited to look for or displayed clearly so that user can visualize it easily before using the website.

Manifestation of Over Act: There must be some kind of physical over action, like downloading, accessing a site, that is sufficient to constitute an act of acceptance.

Thus, a browse-wrap agreement can be created by use of a web page or a hyperlink or a small disclaimer on the page. Courts examine the enforceability of browse-wrap agreements on a case-by-case basis, and there are no “bright-line” rules on whether a given agreement is sufficiently conspicuous.

That the icon for the terms of use agreement be placed in the upper left-hand quadrant of the homepage and that all visitors be channeled through the homepage. The reason for this suggestion is that the court will take judicial notice of the fact that all Internet pages open from the upper left-hand quadrant, thus the defendant must overcome the presumption that the icon was viewed. Without this presumption, the plaintiff has the burden of proving the defendant did see the icon.

Notice to the user is the key to enforce-ability.

Legal enforce-ability in browse wrap agreement by Notice

Legal enforce-ability is the fundamental condition of any contract, in browse wrap agreement; such as “using the Website, you’re agreeing to the terms and conditions of the agreements claiming that merely by click.

About the author: Naveen Kumar Shelar is an advocate and a legal consultant, who founded the online law firm – The Law Office. He is an author of several academic & professional legal books and management articles, and established an NGO called “Nayaya A Voice For Justice” to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge